In a few months, Judge Ketanji Brown Jackson will join the Supreme Court as its junior justice and the newest member of a liberal minority that is routinely outvoted 6-3. But when it comes to court reform, she can claim a leadership position on day one. When she assumes her new office, Jackson should commit to retire after a fixed period of service, provided that other justices follow suit. The goal: to create a system of Supreme Court term limits.
The idea of term limits for Supreme Court justices is popular with both legal experts and the public, and for good reason. Predictable retirements would prevent the court’s makeup from depending on the precise timing of when justices become ill or die. Term limits would also reduce the odds that justices either continue serving through periods of personal decline or try to time their departures to advantage their preferred political party. And term limits have long held bipartisan appeal: Because they have only a gradual effect, they are politically neutral in the long run.
The problem is that term limits seem to require something virtually unattainable — namely, a constitutional amendment. Under the Constitution, after all, federal judges serve for life “during good behavior.” Yet the justices have the power to limit their own terms via resignation. And as Justice Stephen Breyer has just shown, a justice can announce his resignation long before he actually steps down. Back in January, Breyer gave about five months’ notice of his intention to resign, which is why Jackson still has to wait a few months before actually becoming a justice this summer. But if a five-month delay is allowable, why not longer — say, 18 years, as proposed by some term-limits supporters?
Jackson is well positioned to take this principled stand. Court reform has become unusually popular in recent years, and Jackson can bring that fresh perspective to the bench. Jackson is also at the start of her service on a court with a conservative supermajority and so has special reason to consider reforms that would eventually rebalance the court’s makeup. Unless something changes, Jackson can expect a long career of writing dissents.
Persuading other justices to follow Jackson’s lead may seem like a fool’s errand. Members of the court’s majority may be particularly loath to give up the job’s power and perks until absolutely necessary. Yet if the public sees that the justices’ self-interest is standing in the way of the most popular court reform available, reforms that don’t require the judiciary’s support might become more appealing. For instance, Congress might shrink the court’s jurisdiction or increase the number of justices. The increased potential for these outcomes might focus the justices’ minds and make term limits seem attractive by comparison.
Another likely objection is that a justice’s commitment to resign isn’t legally binding. Justices who have promised to step down might not actually do so when the time comes. Already we’ve seen judges renege on their retirement decisions. In fact, at least one federal judge recently stated that he withdrew his resignation announcement after the president chose not to select the judge’s former clerk as his replacement. Fortunately, Congress can pass a law that says a justice who has committed to leaving office after a prescribed period of service must do so.
But Congress is unlikely to act unless Jackson and other justices make the first move. Most cautiously, Jackson might agree to term limits provided that all her colleagues make a similar commitment. Or to build momentum, she might require only that another of the junior justices, such as Justice Amy Coney Barrett, commit to abide by a system of term limits. Whatever the exact approach, Jackson has the opportunity to start a new conversation about term limits — and help prove that the Supreme Court is capable of reforming itself.
Richard M. Re is the Joel B. Piassick Research Professor of Law at the University of Virginia School of Law.